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Facebook + Employees = Yikes!

Dear Rita in HR:I'm hearing horror stories from other executive directors about employees posting confidential information at Facebook, for instance, and lawsuits against nonprofits that looked at these sites as part of reference checks. I myself still pen letters by hand, and I know next to nothing about the pitfalls of social media. Please help me out here! --Anxious and Ignorant

Dear Anxious: Your befuddlement and anxiety about social networking are not uncommon! I'll try to answer your questions about employee use of social networking, and employer use of the web in checking references on job applicants. Because you mentioned Facebook, I'll focus there, but my advice applies to all social networking, such as Twitter, LinkedIn, MySpace, YouTube and so forth. At the end of this article you'll find a Sample Social Networking Policy.

Can we regulate what employees say on Facebook?

The answer is "sometimes" and "maybe."

On social networking sites such as Facebook the line between work and non-work use can be fuzzy. What seems like harmless, fun gossip on a personal level can be damaging to the organization whose employee has posted.

Recently, one nonprofit manager posted on Facebook that his agency was considering layoffs and he included a photo of a co-worker leaning over the copy machine, tagging the photo with, "I'll miss that Hispanic booty." In just one post he revealed confidential information, and opened up the organization to sexual harassment and racial discrimination charges!

This kind of problem is most likely to occur when disgruntled terminated employees choose to "vent" online. Other common issues are complaints about management or co-workers, casual comments that suggest misuse of funds ("my boss took us all out for drinks"), or general charges against the organization ("that bathroom is dangerous!" or "the new play sucks").

Nonprofits can lawfully discharge employees for revealing confidential information, for sexual harassment, for discrimination, and other prohibited workplace behaviors. In fact, federal and state laws require employers to take action to prevent or eliminate harassment both in the workplace and on social media sites. As with all types of workplace behavior, an employer may be liable for the employee's behavior -- if the employer has actual or constructive knowledge of the inappropriate conduct and fails to stop it.

So, nonprofit employers should not monitor Facebook pages of employees. But if another employee or anyone else reports information, the employer has a duty to investigate further.

Employees hurt themselves on Facebook

Also consider that an employee's Facebook postings can be used as evidence for disciplinary action. Consider the employee who is on intermittent FMLA (Family Medical Leave Act) and who posts on her Facebook page that she is headed to the gym during her leave hours. Such information is typically discovered by co-workers who are her Facebook "friends" who then become incensed with her because they are covering her shift. Unless the employee is going to the gym under medical direction and not for recreational purposes, the employee can be disciplined for misuse of the protected leave. And the employer can now check with the doctor to clarify the conditions under which the employee is taking the intermittent leave to determine if the request for intermittent leave is being abused. Or consider the employee who claims that he is not allowed to take rest breaks. His tweets can provide evidence to the contrary.

Even if the employer discovers behavior it does not sanction, can an employer discipline employees for just being silly, immature or offensive on their own personal time for behavior that does not affect the workplace? This is where the line between professional and personal behavior begins to blur.

Criticizing the nonprofit on a personal Facebook page

And even if the behavior does involve the workplace, how the employer discovers the information on a Facebook page can affect whether the employer can discipline employees for improper online activities. Both state and federal laws regulate unauthorized access of electronic communications. The federal Stored Communications Act (SCA) restricts accessing a password-protected site without consent. In Hawaiian and New Jersey cases where employees maintained blogs on which they criticized their employers, the Court determined that when management accessed the blogs without permission, they violated the SCA. Many states have their own privacy protections. In California, courts use a balancing test to evaluate privacy rights, balancing the employee's reasonable expectation of privacy against the employer's business justification for invading that privacy. In one case, when a co-worker gave a manager the password to a site, the Court still found a privacy violation.

In addition, many state laws protect employees' legal off-site conduct during non-working hours. And the National Labor Relations Act (NLRA) protects discrimination against employees who "discuss" the terms of employment, including wage and hour issues.

When determining whether to use blog information to discipline an employee, all blog indiscretions should receive consistent treatment. For example, a Delta Airlines flight attendant was fired for posting revealing pictures of herself in her Delta uniform on her blog. When this "Queen of the Sky" discovered that male attendants had posted similar revealing pictures with impunity, she sued for discrimination.

Regulating employee social networking practices requires employers to respond to unlawful social networking conduct without violating the privacy rights of their employees. Like most privacy-related questions, the answers are still evolving and require "a fine balance" between regulating work-related conduct and the privacy rights of employees. With the help of an employment specialist, employers should develop well thought-out policies to deal with the posting activities of their employees in work-related contexts.

Checking the Facebook page of a job applicant

Most nonprofit handbooks acknowledge state and federal anti-discrimination laws with language such as:

This equal opportunity language applies to job applicants as well as current employees. Since employers cannot ask an applicant about these protected characteristics, why would any employer check an employee's Facebook page where these characteristics might show up? When an applicant fails to get invited for an interview, an employer who has looked at the applicant's Facebook page pre-interview has invited a potential lawsuit for making its interview decision based on personal characteristics instead of the applicant's job-related credentials.

Here's where things get complicated: After the interview, most job offers are conditioned upon a successful background check to verify the applicant's credentials. Surprisingly, about 53% of those background checks find a discrepancy involving the applicant's information. (www.fakeresume.com). Employers can use third party vendors to conduct background checks, after the employee has been given written notice of the background check and signed a consent form. However, if an employer either wants to conduct its own background check or supplement the third-party background check with a social media search, it should attempt to limit the risks. First and foremost, the in-house "checker" must verify that she has the right person. Next, the nonprofit should draft a list of criteria it is searching for. The list should be consistent for all applicants (if two or more applicants are being checked out); and, the "checker" should not play a part in the hiring decision, but should report only on the legitimate answers to the pre-defined questions. For example, the "checker" should not report back to the hiring committee that the employee is gay, married, is a cancer survivor, is pregnant, etc. However, the "checker" could report back that the Facebook page indicated that the applicant does not have the degree he claims, was fired from his last job, has been convicted of a crime which he did not list on his application, or has posted disrespectful comments about his prior employer.

Again, this is a slippery slope that should be well-considered before utilizing social media to investigate the background of a prospective employee.

When your nonprofit has a Facebook page, it is vulnerable to negative comments posted there by the public. When coming from someone who identifies himself or herself as a former employee, such negative comments may have more credibility. For example, I have seen angry ex-employees vilifying their former employers in the foster care system. An angry ex-employee could post that the nonprofit does not maintain proper oversight of its homes, even allowing pedophiles to care for children. Before these posts can be removed, the damage has been done.

Perhaps more dangerously, negative (or positive) comments made by your employees can be imputed to you as the employer. There have already been several lawsuits filed against employers as a result of blog postings, but the law is still in its infancy stage as to employer liability.

Another big downside is that your nonprofit is not in complete control of what happens on Facebook: Facebook is in charge. Every social networking site has a Terms of Use (TOU) that should be reviewed by someone in your organization since your nonprofit could potentially be held liable for breach of contract if your employees violate the TOU.

Hopefully, before too long we will have some legal guidelines on how to navigate the social networking phenomena as it relates to employment issues. But unless your nonprofit wants to be a test case, implement a well-thought-out policy that will educate your employees about the potential employment impact of using social media.

Pamela Fyfe is an HR attorney with the Nonprofits Insurance Alliance Group where she advises nonprofits on wrongful termination, wage & hour, discrimination, sexual harassment, and other employment issues -- before they are sued -- to help keep them out of court. Ask Rita in HR is a frequent column in Blue Avocado made possible by the Nonprofit Insurance Alliance Group.

Comments (15)

Anonymous

I have a leadership-level employee who has had some struggles at work as far as displaying seriousness of purpose. Partying is her priority and she has had some coaching and support around work. Yet she regularly posted on Facebook such statements as, "Hooray, Friday is coming" and "I sure hate to see this long weekend end" and (on Tuesday) "Two down, only three to go."
Her own staff post support for her wishes for work to be over.
I approached her to suggest that indicating her desire to be away from work does not reflect the attitude our directors ought to be conveying to the world. While she expressed great love for her work and appreciation of her position, instead of cleaning up her act, she "unfriended" me and all other management colleagues!
Let's just say a promotion is not in the cards.

I think that you, anonymous, are being completely unfair! Even loving your job doesn't mean you want to do it all the time. Wanting the weekend to come is not a crime, and if her comments are her own, and not posted via your website or the organization's facebook page, her comments should not have any bearing on her promotional status. Her unfriending you perhaps was a correction to a behavior that should not have happened... if you want your comments about work to be private, or only among friends, you don't friend your bosses!
You obviously promoted her based on her merits, and she clearly loves and is good at her job. If there are other disciplinary issues, that's one thing, but if her "partying" is not getting in the way of her doing a good job at work (the time of day when you actually get to control her, as opposed to her nightlife, which you apparently want to control as well), and her biggest crime is liking the weekends, it seems in very, extremely poor judgment to refuse to promote her because of a few Facebook statuses.

Me thinks the poster of comment number one was pulling our leg. Very starchy, school-marm language throughout, but uses the slangy word "partying" and the phrase "cleaning up her act" ? Anonymous, you gave me a giggle.

I think you're missing the point, which is that the person posting on Facebook was a leadership-level person, but was making comments not in keeping with that. If the person was running around the office telling co-workers "I miss the weekend" and "two down, three to go," it could be seen as not manifesting an appropriate attitude for a leader and causing a potential morale issue. It shouldn't be any different with Facebook posts.

I think that is ridiculous. Even "bosses" can look forward to, and enjoy, the weekends... for time with family, R&R, etc. That doesn't mean they don't enjoy their job... One can enjoy their job and still look forward to doing other things. As long as the person isn't expressing anything negative about the job, the organization, or the mission, I don't see how looking forward to a weekend, or being sorry a long weekend is almost over, would affect morale... if they are positive about work when at work with staff. The takeaway is that it is generally not a good idea to "friend" bosses, and probably not a very good idea to "friend" staff or co-workers either. I would recommend using one site for "friends" outside of work (with appropriate privacy settings turned on), and one for professional connections.

Agreed. Additionally, I think anyone in that situation has the right to unfriend colleagues. If you're saying it's not work appropriate, problem solved! Mixing personal and professional has long been warned against. My personal policy is that no work friends (unless they were friends before the job) are facebook friends. Most especially no superiors or potential employers! And yes, it was an awkward conversation when I told my boss why i was rejecting her "friendship request"... but it's my policy, and as I told her, just like all the policies at my job, I stick to them 100% of the time. It's just easier that way.
When your work colleagues have access to your personal account, you're asking for trouble!

There is one thing I would add to the article, and that I'm concerned always seems to be missing from articles like this. Perhaps it is implied, but I think its worth stating:
If you're concerned about your employees complaining about your business on social networking sites, perhaps your first concern, rather than having complicated social networking policies and attempting to control your employees when they're off the clock, should be to make sure there's nothing to complain about! If you run a tight ship and make work tolerable to enjoyable, you won't have anything to worry about. Surely we all realized, as we read the part about that Hispanic booty, that the problem in that situation had nothing to do with social networking.

There is *always* something to complain about at work. That's just reality. I have never met anyone, anywhere, who didn't have frustrations with their job, boss, clients, or coworkers at least some of the time.
The challenge is that venting to your family or friends is different from publishing (on line or anywhere else) your frustrations. And of course, there are often management decisions being made that employees don't know about.
Sharing your opinion is different than defaming the organization or making claims (that could be spurious) that put the organization at risk.
-kelly, madison wi

The way this usually happens is that another employee has friended the employee in question, and passes along information to the boss, something like, "come over here and look at what X posted on her Facebook wall!"I am an HR professional and have seen this happen more often than you would imagine.

Yes, of course, as discussed in the previous comment. My question was related to a "potential" employer. If I am applying for a job, and I have all my Facebook privacy settings set so that only "Friends" can see anything of significance, then I don't see how a "search" by a potential employer could come up with anything incriminating. So that is my question... if so, how and what? If, BIG "IF," the employer knew one of my "friends" and they happened to be willing to give them access or show them my site or something, I suppose that could be an issue (IF there was anything objectionable), but that seems like a long shot, and highly unlikely in most cases. So, if privacy settings are set for friends only, then a "potential" employer should not be seeing anything on my Facebook page... correct??? Or not??

And... furthermore, on this issue.... IF it is a private posting between one person and another, it seems to me the ETHICS issue comes into play.... do you have a right to look at personal conversation between two other people? Clearly meant to be personal as shown by the "friends only" status. Perhaps looking at that information should be considered unethical... Perhaps the ethics of the person who is sharing that "friend only" information should be questioned???? It is essentially "gossiping".. even though there may be more evidential matter than in the past!

And why is the boss or HR person listening to that hearsay, or looking at a posting that was not meant to be public for them?? Are they considering that it could be out of context without knowing everything around it... Are they looking at all the related postings, or past postings that may give more meaning to this private posting? Obviously, it depends on what it is.... It could be valid. I'm imagining the least offensive issues here--for example, someone enjoying their weekend "partying" (dancing, drinking, being silly-not-illegal, etc.). And also depending on the public nature of their postings. If meant for friends only, then I'd say, if you aren't a "friend," you should think long and hard about the ethics of knowing anything about their personal info with their "friends"...

And in my opinion, that goes for employers or potential employers... or others! If you are accessing information that isn't public, and using that information for your benefit or to the detriment of another, you must consider the ethics of this. As a society, we need to encourage the ethical use (and evaluation) of information that is all too readily available!

In regards to the statement, "Surprisingly, about 53% of those background checks find a discrepancy involving the applicant's information." I really expected more from Blue Avocado, as the quoted site is nothing more than a collection of scare tactics designed to sell the "author's" information on how to lie and cheat.
Other great information contained includes "How to get College transcripts from ANY University with any GPA you want!" and "The best way to get fake references". Yeah, great journalism research here... those statistics you stated can really be relied upon!
I understand that this is a blog, but please, have some sense of integrity here.

Can an employer (non-profit or for profit) be "liable" for information posted on an employee's "personal" Facebook page? For example, even if the employee doesn't list their company as their employer on the About Me section, if the employee posts their opinions about social hot topics such as: abortion, homosexuality, political opinions, etc.and those personal opinions offend someone. Can that offended person go after the employer stating that the because John Smith is employed with them, they are somehow representing the company. Recently, I've heard that employees must be careful of what they post on social media (pics, comments, videos) because it can be erroneously perceived as them somehow representing /mis representing company views.

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